A REVIEW OF THE PRESIDENT’S EXECUTIVE … review of the president’s executive actions on immigration joint hearing ... john l. mica, florida ... mark walker, north carolina rod

U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON :

For sale by the Superintendent of Documents, U.S. Government Publishing OfficeInternet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

96–954 PDF 2015

A REVIEW OF THE PRESIDENT’S EXECUTIVE ACTIONS ON IMMIGRATION

JOINT HEARING BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY AND THE

SUBCOMMITTEE ON HEALTH CARE,

BENEFITS AND ADMINISTRATIVE RULES OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTEENTH CONGRESS

FIRST SESSION

JUNE 17, 2015

Serial No. 114–44

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov http://www.house.gov/reform

VerDate Sep 11 2014 15:20 Oct 28, 2015 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 F:\96954.TXT APRILAK

ING

-643

0 w

ith D

IST

ILLE

R

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

JASON CHAFFETZ, Utah, Chairman JOHN L. MICA, Florida MICHAEL R. TURNER, Ohio JOHN J. DUNCAN, JR., Tennessee JIM JORDAN, Ohio TIM WALBERG, Michigan JUSTIN AMASH, Michigan PAUL A. GOSAR, Arizona SCOTT DESJARLAIS, Tennessee TREY GOWDY, South Carolina BLAKE FARENTHOLD, Texas CYNTHIA M. LUMMIS, Wyoming THOMAS MASSIE, Kentucky MARK MEADOWS, North Carolina RON DESANTIS, Florida MICK MULVANEY, South Carolina KEN BUCK, Colorado MARK WALKER, North Carolina ROD BLUM, Iowa JODY B. HICE, Georgia STEVE RUSSELL, Oklahoma EARL L. ‘‘BUDDY’’ CARTER, Georgia GLENN GROTHMAN, Wisconsin WILL HURD, Texas GARY J. PALMER, Alabama

ELIJAH E. CUMMINGS, Maryland, Ranking Minority Member

CAROLYN B. MALONEY, New York ELEANOR HOLMES NORTON, District of

Columbia WM. LACY CLAY, Missouri STEPHEN F. LYNCH, Massachusetts JIM COOPER, Tennessee GERALD E. CONNOLLY, Virginia MATT CARTWRIGHT, Pennsylvania TAMMY DUCKWORTH, Illinois ROBIN L. KELLY, Illinois BRENDA L. LAWRENCE, Michigan TED LIEU, California BONNIE WATSON COLEMAN, New Jersey STACEY E. PLASKETT, Virgin Islands MARK DeSAULNIER, California BRENDAN F. BOYLE, Pennsylvania PETER WELCH, Vermont MICHELLE LUJAN GRISHAM, New Mexico

SEAN MCLAUGHLIN, Staff Director DAVID RAPALLO, Minority Staff Director

SEAN HAYES, Staff Director, Subcommittee on Health Care, Benefits and Administrative Rules ART ARTHUR, Staff Director, Subcommittee on National Security

SARAH VANCE, Clerk


ING

-643

0 w

ith D

IST

ILLE

R

(III)

SUBCOMMITTEE ON NATIONAL SECURITY

RON DESANTIS, Florida, Chairman JOHN L. MICA, Florida JOHN J. DUNCAN, JR., Tennessee JODY B. HICE, Georgia STEVE RUSSELL, Oklahoma, Vice Chair WILL HURD, Texas

STEPHEN F. LYNCH, Massachusetts, Ranking Member

ROBIN KELLY, Illinois BRENDA L. LAWRENCE, Michigan TED LIEU, California

SUBCOMMITTEE ON HEALTH CARE, BENEFITS AND ADMINISTRATIVE RULES

JIM JORDAN, Ohio, Chairman TIM WALBERG, Michigan, SCOTT DESJARLAIS, Tennessee TREY GOWDY, South Carolina CYNTHIA M. LUMMIS, Wyoming MARK MEADOWS, North Carolina RON DESANTIS, Florida MICK MULVANEY, South Carolina Vice

Chair MARK WALKER, North Carolina JODY B. HICE, Georgia EARL L. ‘‘BUDDY’’ CARTER, Georgia

MATT CARTWRIGHT, Pennsylvania, Ranking Member

ELEANOR HOLMES NORTON, Distict of Columbia

BONNIE WATSON COLEMAN, New Jersey MARK DESAULNIER, California BRENDAN F. BOYLE, Pennsylvania JIM COOPER, Tennessee MICHELLE LUJAN GRISHAM, New Mexico Vacancy


ING

-643

0 w

ith D

IST

ILLE

R


ING

-643

0 w

ith D

IST

ILLE

R

(V)

C O N T E N T S

Page Hearing held on June 17, 2015 ............................................................................... 1

WITNESSES

Ms. Sarah R. Saldana, Director, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security

Oral Statement ................................................................................................. 6 Written Statement ............................................................................................ 8

Mr. Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security


Mr. John Roth, Inspector General, Office of Inspector General, U.S. Depart-ment of Homeland Security


APPENDIX

Letters to Secretary Jeh Johnson, Department of Homeland Security ............... 36 Questions and Responses to Mick Mulvaney ........................................................ 62 Questions from Representatives Hice, Walker, and Carter .................................Statement for the hearing Record from NCAPA ................................................... 71


ING

-643

0 w

ith D

IST

ILLE

R


ING

-643

0 w

ith D

IST

ILLE

R

(1)

A REVIEW OF THE PRESIDENT’S EXECUTIVE ACTIONS ON IMMIGRATION

Wednesday, June 17, 2015

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL SECURITY, JOINT WITH THE

SUBCOMMITTEE ON HEALTH CARE, BENEFITS AND ADMINISTRATIVE RULES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, D.C.

The subcommittees met, pursuant to call, at 2:00 p.m., in Room 2154, Rayburn House Office Building, Hon. Ron DeSantis [chair-man of the Subcommittee on National Security] presiding.

Present: Representatives DeSantis, Jordan, Russell, Walberg, DesJarlais, Hice, Meadows, Walker, Carter, Lynch, Cartwright, Lieu, Norton, Kelly, DeSaulnier, and Lujan Grisham.

Mr. DESANTIS. Subcommittee on National Security and the Sub-committee on Healthcare, Benefits, and Administrative Rules con-venes today to review the President’s executive actions on immigra-tion.

On November 20, 2014, just 2 weeks after the 2014 midterm elections, President Obama made far-reaching unilateral changes to our Nation’s immigration policy, despite saying on over 22 dif-ferent occasions that he did not have the authority to do so. In his address on that day, the President said that: We’re a Nation of laws. Those who broke our immigration laws must be held account-able, especially those who are dangerous. That’s why over the past 6 years, deportations of criminals are up 80 percent. And that’s why we’re going to keep focusing enforcement resources on actual threats to our security. We will prioritize, just like law enforcement does every day.

The administration’s actions, however, have not matched the President’s rhetoric. According to documents provided to the House Judiciary Committee by DHS in April of this year, ICE arrests of criminal illegal aliens has declined 32 percent from the same pe-riod a year before, with 51,337 administrative arrests of criminal aliens in fiscal year 2015 compared to 75,171 arrests in the same period in fiscal year 2014. Those declines occurred across the board of criminal offenses. We have recently learned that between fiscal year 2010 and fiscal year 2014, 121 criminal illegal immigrants were charged with homicide following their release from ICE cus-tody. The administration failed to remove these criminals from the United States. And 64 of those were released by ICE at its own dis-cretion, not pursuant to any court order.


ING

-643

0 w

ith D

IST

ILLE

R

2

It was also revealed that the administration has repeatedly re-leased the same criminal aliens. At our March 19 hearing on the President’s executive actions, the committee discussed the fact that in fiscal year 2013 ICE released 36,007 criminals, convicted crimi-nals, that were in its custody. And we have learned that 1,000 of those criminals who were released have already been convicted again of new crimes.

And if that were not bad enough, we have since learned that ICE released 156 of those repeat offenders again into American commu-nities instead of returning them to their home country.

Plainly, the President’s assertion his administration will keep fo-cusing enforcement resources on actual threats to our security is not—is contradicted by those facts. Simply put, the President’s pol-icy changes are not doing a good job of protecting the safety of the American people.

Now, the legality of the immigration policy change has been called into question both by this Congress and by the Federal courts. And, in fact, on February 16, a Federal judge ruled that the administration failed to comply with the law when they imple-mented the President’s executive action. In a subsequent order, on April 7, that same judge stated that he was, quote, ‘‘extremely troubled by multiple representations made by the government’s counsel, both in the writing and orally, about the administration’s implementation of the revisions to his immigration policy.’’

Taken as a whole, these facts make it clear that the President’s unilateral changes are failing to achieve the stated purpose of pro-tecting the American people. They also call into question the legal-ity of certain actions taken by the administration in implementing those changes, and these are changes both in terms of the policy effect and the legality that they—that we will review today.

Without objection, the chairman is authorized to declare a recess at any time.

I now recognize the ranking member of the National Security Subcommittee, Mr. Lynch, for 5 minutes.

Mr. LYNCH. Thank you, Mr. Chairman. I also want to thank our panelists for your willingness to testify

and help the committee with its work. Today will mark the fourth hearing held by this committee since

the beginning of the 114th Congress to examine the executive ac-tions on immigration announced by President Obama in November of 2014. We have also reviewed the Department of Homeland Secu-rity’s revised immigration enforcement policies at both the sub-committee and full committee level, and we have examined the eco-nomic impact of recent executive actions. We have even looked at the questionable premise that those executive actions will somehow encourage voter fraud in State and Federal elections.

Now, I understand that these continued hearings may stem from disagreement over the administration’s course of action on immi-gration. I have my own concerns about the precedent set by execu-tive actions when it comes to other major policy issues that may affect future Congresses. However, I also share President Obama’s frustration with the inability of some Members of Congress to sup-port a balanced and sustainable immigration policy.


ING

-643

0 w

ith D

IST

ILLE

R

3

Too often this immigration debate becomes a battle between the throw-them-all-out crowd and the let-them-all-in crowd. But the truth of the matter is that we simply need to develop a responsible and sustainable immigration policy. And I think we all agree that the current arrangement is not working.

The United States has always been a nation of immigrants and welcoming those who would help build our country and who want to come here for all the right reasons. That’s a fundamental Amer-ican principle. That’s why I strongly believe that our primary focus as lawmakers and members of this committee should be to make every effort to overcome the legislative gridlock that has defined immigration reform thus far so that Congress affords itself the op-portunity to thoroughly debate and shape our Nation’s immigration policy going forward.

In addition, we must ensure that those Federal agencies respon-sible for immigration enforcement, such as the Department of Homeland Security, have the resources and tools that they need to do their jobs. Regrettably that is not the case. As noted in the De-partment-wide memo issued by Secretary Jeh Johnson in Novem-ber of 2014, ‘‘Due to the limited resources, DHS and its components cannot respond to all immigration violations or remove all persons illegally in the United States.’’ This is especially true given that the Federal Government is still operating under sequestration. In addition, Congress recently approved a budget blueprint that con-templates cutting nondefense spending, including Homeland Secu-rity budget, by $500 million below the sequester-level spending caps.

In spite of budgetary constraints, the Department of Homeland Security has detained and deported more individuals than during any other period in its history. According to the immigration—ex-cuse me, the Migration Policy Institute, roughly 1.95 million people were removed from the United States between 2008 and 2013, those 6 years. That’s approximately the same number who were subject to removal during the 8 years of the Bush administration.

In accordance with the guidance issued by Secretary Johnson last year, the Department also continues to conduct its enforcement and removal activities by prioritizing high-level threats to National security, border security, and public safety. Chief among the high-est priority threats are undocumented immigrants suspected or en-gaged in terrorism or espionage, convicted felons, and those con-victed of criminal street gang activity.

DHS is also seeking to strengthen its ability to collect and ana-lyze immigration data in response to the recommendations issued by DHS Inspector General Roth, who is a guest of ours today, in May of 2015, regarding how best to enhance enforcement efficiency. Specifically, the inspector general’s report notes that DHS agreed with the report’s recommendation and plans to initiate a multipronged approach to gathering essential data on its use of prosecutorial discretion through its Office of Immigration Statis-tics.

Secretary Johnson ordered the Department and its components to fully comply with a February 2015 injunction issued by the U.S. District Court for the Southern District of Texas to halt the expan-sion of the Deferred Action for Childhood Arrivals program and the


ING

-643

0 w

ith D

IST

ILLE

R

4

creation of a Deferred Action for Parental Accountability Program. In particular, Secretary Johnson announced on the day after the decision that DHS would not accept requests for expanded child-hood arrivals and will suspend its plan to accept requests for the new parental accountability program. He has also requested that the Inspector General Roth investigate the issuance of approxi-mately 2,000 expanded work permits by U.S. citizens ship and im-migration services that were already in process but not halted quickly enough in violation of the injunction. And I understand that the Department has been cooperating with the Inspector Gen-eral’s Office thus far.

So, Mr. Chairman, I look forward to discussing the progress of this investigation and other issues pertaining to our improving im-migration enforcement with our panelists.

And I yield back the balance of my time. Mr. DESANTIS. I thank the gentleman from Massachusetts. The chair now recognizes the chairman of the Health Care, Bene-

fits, and Administrative Rules Subcommittee, Mr. Jordan, for his opening statement.

Mr. JORDAN. Thank you, Mr. Chairman. I’ll be brief. Here are the facts. As the chairman indicated, 22 times the

President said he couldn’t do what he did. Federal judge agreed with the President, what he said 22 times, and said the executive amnesty order was in fact wrong. That judge has said attorneys for the government, when they came before the court, misrepresented the facts. And after the injunction, the Department of Homeland Security violated the judge’s order when they sent 3-year work au-thorizations to approximately 2,000 individuals. Those are the facts. That’s what we need to get the answers to. That’s why I’m pleased our panel is here, so they can answer our questions.

And I think this is a hearing very necessary, Mr. Chairman. I appreciate the chance to be here. Appreciate you calling the hear-ing.

With that, I yield back. Mr. DESANTIS. Gentleman yields back. The chair now recognizes my friend from Pennsylvania, the rank-

ing member on the Health Care, Benefits, and Administrative Rules Subcommittee, Mr. Cartwright, for his opening statement.

Mr. CARTWRIGHT. Thank you, Mr. Chairman, and thank you to our witnesses for joining us today. I look forward to hearing how the administration is working to uphold this Nation’s immigration laws. Following the issuance of the administration’s executive ac-tions on November 20, 2014, a lawsuit temporarily halted the roll-out of new and expanded deferred action programs. The Depart-ment of Homeland Security trained its personnel and has begun implementing and working on new prosecutorial discretion policies, and U.S. Immigration and Customs Enforcement, ICE, prepared for the rollout of the new Priority Enforcement Program.

In the midst of all that’s happened, I think some of my colleagues have forgotten the reasons for the actions in the first place. Our immigration system was and continues to be in dire need of reform. DHS faces 11 million undocumented immigrants and does not have the resources available to remove them all. Many of these individ-uals have been in this country for upwards of a decade, living in


ING

-643

0 w

ith D

IST

ILLE

R

5

the shadows, raising their children, many of whom were born in the United States.

The Senate passed a bipartisan comprehensive reform bill in 2013, but legislative efforts have ground to a halt in the House be-cause of Republican opposition. In the face of legislative inaction, DHS issued a series of memoranda attempting to address the grow-ing undocumented population. One memo provided guidance to more consistently focus resources on removing the most dangerous criminals and the most serious threats to public safety. Another memo announced efforts to improve the partnership between DHS and State and local law enforcement. Yet another memo modified deferred action policies in order to provide temporary stability to hardworking peaceful immigrants who are willing to pay their dues.

These executive polices attempted to solve problems, but the ex-ecutive branch can only go so far legally. And the immigration sys-tem will remain broken until Congress passes a legislative solution. Republicans in Congress have been happy to challenge and ques-tion and criticize the administration for its actions instead of offer-ing solutions. Now, given the recent Texas Federal Court injunc-tion, it is my belief that the USCIS Director Leon Rodriguez under-stands his responsibility to comply with the law and that he has worked quickly to halt the implementation of the new and ex-panded deferred action programs as soon as possible.

I also appreciate that the USCIS has taken full responsibility for the release of work permits after the injunction was ordered, and I look forward to hearing today about changes at USCIS that will ensure that this kind of thing doesn’t happen again.

But while the courts hear the legal challenges to the administra-tion’s actions and while Republicans in Congress criticize those ac-tions themselves, the problems in our Nation’s immigration system persist.

I urge that my colleague across the aisle turn their efforts to-ward lawmaking and away from bellyaching. Moving forward, I hope we can finally focus on comprehensive lasting legislative solu-tions. This is the work and attention our broken immigration sys-tem and the millions affected by it so desperately need.

I thank you, and I yield back, Mr. Chairman. Mr. DESANTIS. Gentleman yields back. Thank you. I will hold the record open for 5 legislative days for any members

who would like to submit a written statement. We will now recognize our witnesses. And I’m pleased to welcome

Ms. Sarah Saldana, Director of U.S. Immigration and Customs En-forcement; Mr. Leon Rodriguez, Director of U.S. Citizenship and Immigration Service; and Mr. John Roth, inspector general at the U.S. Department of Homeland Security.

Welcome all. Pursuant to committee rules, all witnesses will be sworn in be-

fore they testify. If you please rise and raise your right hands. Do you solemnly swear the testimony you are about to give will

be the truth, the whole truth, and nothing but the truth, so help you God?

Thank you. Please be seated.


ING

-643

0 w

ith D

IST

ILLE

R

6

All witnesses answered in the affirmative. In order to allow time for discussion, please limit your testimony

to 5 minutes. Your entire written statement will be made part of the record.

And, with that, Ms. Saldana, you’re up for 5 minutes. Thank you. Ms. SALDANA. Thank you, Chairman Jordan and DeSantis and

ranking member—— [Disturbance in hearing room.] Mr. DESANTIS. Committee will come to order. Please have the po-

lice escort the protesters out. Committee will come to order. Committee will suspend. rotesters will leave the hearing room. We ask the people who are

watching, watch, listen, learn, but if you disrupt a hearing, you will be removed.

I now recognize Ms. Saldana for 5 minutes.

WITNESS STATEMENTS

STATEMENT OF SARAH R. SALDANA

Ms. SALDANA. Thank you. I don’t think I got to thank the Rank-ing Members Cartwright and Lynch and subcommittee members. I’m pleased to appear before you along with U.S. Citizenship and Immigration Services Director Leon Rodriguez. While Directors Rodriguez and I lead different agencies with certainly distinct mis-sions, we are part of the same Department and are very mindful of the necessity to do all we can to ensure coordination between our components.

In the 2 months since I first appeared before the full committee, I have continued to take steps to enhance ICE’s ability to achieve one its primary goals, that of enforcing our Nation’s immigration laws and keeping our country safe by ensuring we focus our re-sources on individuals who pose the greatest threat to our National security and to public safety.

Secretary Johnson has made it clear to all of us that our borders are not open to illegal migration and that I should allocate enforce-ment resources accordingly, consistent with our laws and with our values. As such, ICE is endeavoring to use appropriate prosecu-torial discretion and dedicating resources to the greatest degree possible toward the removal of individuals who are considered en-forcement priorities, which includes criminals and recent border entrants.

Guided by DHS’ enforcement priorities, the approximately 7,300 personnel of ICE Enforcement and Removal Operations, or ERO, identify and arrest and detain convicted criminals and other re-movable aliens. We, as appropriate, supervise them through alter-natives to detention or remove them from the United States through our immigration courts.

While there is still a lot of work to be done, I’ve seen progress in my 6 months leading this agency. First and foremost, our em-ployees are dedicated to accomplishing this mission with integrity and with professionalism. As a result of their tireless effort focus-ing on the priorities I mentioned, they are making our communities safer.


ING

-643

0 w

ith D

IST

ILLE

R

7

We are now removing a greater percentage of criminals than we have in the past. And I’m committed to continuing this trend. In fiscal year 2014, 85 percent, 85 percent, of individuals removed or returned from the interior were individuals previously convicted of a criminal offense, reflecting a significant increase in the rate of re-moval of individuals with convictions from 67 percent in fiscal year 2011 compared to 38 percent in fiscal year 2008.

The increasing number of convicted criminals removed from our country is the result of a change in ICE’s strategic focus, which re-vised policies and your initiatives have helped us achieve. That’s why I, along with our employees at ICE and the leadership of the Department, have been working hard to implement the new Pri-ority Enforcement Program, PEP, where we engage State and local communities to enhance the agency’s ability to remove dangerous individuals.

Recently, both the counties of Los Angeles and Contra Costa in California agreed to continue cooperating with ICE and DHS in im-plementing PEP. We anticipate they will be the first of many. That’s also why I’ve been working to bolster ICE’s ability to obtain travel documents from recalcitrant countries, a problem I know this committee is familiar with. I’ll continue to work closely with the Department of State to achieve better compliance from coun-tries in accepting the return of their nationals.

I should also mention my establishment of enhanced oversight and release procedures for ICE custody determinations involving detainees with criminal convictions on their records, to include de-veloping a capability to provide appropriate criminal alien release information to State law enforcement authorities and relevant ju-risdictions. I put this procedure in place to enhance public safety and greater public confidence in ICE’s enforcement and administra-tion of immigration laws. Part and parcel of this effort is a law en-forcement notification system currently being used in Virginia, Louisiana, and my home State of Texas, in its early stages cur-rently and which we expect to be fully implemented across the country sometime before the end of the year.

With respect to family residential centers, last month I an-nounced a series of actions to enhance oversight over these centers to increase access and transparency to ensure that they continue to provide a safe and humane environment for detained families. While we routinely review and evaluate our facilities, all of our fa-cilities, we understand the unique and sensitive nature of dealing with women and children in these settings. Even as we do this, however, we also cannot have an immigration system that encour-ages criminals to take advantage of people to abuse women and children while they attempt to smuggle them into the United States. And both ERO and HSI are working together to find and dismantle and bring to justice these organizations.

As we move forward, I believe that ICE will be successful in the deliberate implementation of our mission objectives. I look forward to working with this committee, and I echo the sentiments of the Congressman with respect to reform of the laws, which are encom-passed in this book, along with the regulations. This is a very com-plex system that needs to be reformed.

[Prepared statement of Ms. Saldana follows:]


ING

-643

0 w

ith D

IST

ILLE

R

8

For complete submitted testimony, please see the following website:

https://oversight.house.gov/hearing/a-review-of-the-presidents- executive-actions-on-immigration/

Mr. DESANTIS. Thank you. Gentlewoman’s time is expired. The chair now recognizes Mr. Rodriguez for 5 minutes. You’re up.

STATEMENT OF LEON RODRIGUEZ

Mr. RODRIGUEZ. Good afternoon, chairman—chairmen, ranking members, and members of the committee. Thank you very much for inviting me to be here today.

I have talked about my own personal story before. I am the son of Cuban refugees from south Florida. I have talked often about the sufferings that led them and my grandparents to make the choices to come here to the United States and the hopes and dreams that they brought with them when they came here. This has taught me as Director of USCIS that every file we see, whether it is a DACA request, naturalization request, a refugee filing, a worker visa fil-ing, that all of these cases represent one family’s hopes and dreams and, in many cases, that family’s sufferings. I believe deeply in the work that we do as USCIS. And I believe in it because it requires us both from a perspective of immigration policy and operating the immigration system to answer fundamental questions about our country.

Will we be a prosperous country, or will we not? Will we keep families together, or will we allow them to be fragmented and de-stroyed? Will we be guided by the rule of law, or will we not? Will we protect the National security, or will we not? Will we lead when there are issues, or will we just watch as those issues deepen, be-come worse, become problems and even crises?

Unfortunately, for too long, our political system failed to answer these questions with respect to a number of aspects of our immi-gration system. Not simply the situation of those who are here in undocumented status, and the many members of their families who are here legally but also those aspects of our immigration system that bear critically on our economic prosperity and our civic sta-bility. It is for this reason that the President issued his executive actions back in November of 2014, focusing on promoting integra-tion of immigrants, promoting actual accountability of those who are here in an undocumented status, a condition that did not exist before the President took that step, and promoting within the con-fines of what the law allows him, an immigration system that fully promotes our economic success as a country.

The President was building on the success of the 2012 DACA program, and there are many success stories. Young people who have become teachers, nurses, doctors—in one case now, even a lawyer—and who really demonstrate the potential that they have to contribute to the United States. Our work was enjoined by the court in Texas. The one thing I’d like to underscore about that is that it’s not over until it’s over. We believe in the legality of our policies, and we believe that in the end we will be vindicated by the legal process.


ING

-643

0 w

ith D

IST

ILLE

R

9

Nonetheless, when the court issues an injunction, I as the Direc-tor of USCIS, as an attorney, and as a former prosecutor, ordered the immediate cessation of all activities to implement the deferred action policies under the President’s executive actions. One of those actions was to stop the issuance of 3-year work authorizations that had actually been granted the week before the injunction was issued. Unfortunately, through a miscommunication, those work authorizations were issued anyway. I have taken full responsibility, both in this forum and before the court, and to say that I took it before the court is to say something significant. I am an attorney. I am a former prosecutor. And I have said very clearly to Judge Hanen: I am responsible. I am accountable for what my agency did.

The question, now, though is as I take accountability, will we as a political system take full accountability for the challenges that we have in our immigration system. The President made it very clear at the time that he issued the executive orders, that they could be stopped immediately if instead we found a legislative solu-tion to the ongoing now decades-long challenges presented by the undocumented, presented by the insufficiency of our immigration system to meet our economic needs. I stand here today ready to work with all of you to work toward those improvements.

Thank you, and I look forward to your questions. [Prepared statement of Mr. Rodriguez follows:] For complete submitted testimony, please see the following

website: https://oversight.house.gov/hearing/a-review-of-the-presidents-

executive-actions-on-immigration/ Mr. DESANTIS. Thank the gentleman. Chair now recognizes Inspector Roth for 5 minutes.

STATEMENT OF JOHN ROTH

Mr. ROTH. Good afternoon, Chairmen Jordan and DeSantis, chairman member—Ranking Members Cartwright and Lynch, and members of the subcommittee. Thank you for inviting me here to today to discuss DHS’ collection of prosecutorial discretion data.

DHS has instituted various policies over time that allow the use of prosecutorial discretion in making immigration enforcement de-cisions. However, the Department does not collect or use such data to help assess immigration policy, evaluate the effectiveness and results of enforcement actions, or be able to assess the reasonable-ness of the exercise of that discretion on the part of DHS personnel.

Since DHS’ formation in 2003, ICE has implemented various policies to focus its efforts on criminal and civil enforcement prior-ities. It has also used policies for processing aliens with special cir-cumstances, such as crime victims and witnesses, nursing mothers and the elderly, as well as ensuring that enforcement actions are not focused on sensitive locations, such as schools and churches.

At the time of our audit, ICE’s removal actions were governed by a series of policy memoranda signed by then-ICE Director John Morton in March and June of 2011 and focused its enforcement re-sources on three things: One, aliens who pose a danger to national security or risk to public safety; two, aliens who recently violated the immigration controls at the border and ports of entry or know-


ING

-643

0 w

ith D

IST

ILLE

R

10

ingly abused the visa process; and, three, aliens who were fugitives or otherwise obstruct immigrations controls.

Additionally, a year later, in 2012, the Department issued guid-ance, known as the Deferred Action for Childhood Arrivals, known as DACA, which allows the use of prosecutorial discretion to defer action or release some aliens who came to the United States as children and meet other criteria. Despite its reliance on discretion to prioritize enforcement resources, ICE often does not collect pros-ecutorial discretion data and does not always ensure that its statis-tics are accurate and complete. For example, ICE records its use of prosecutorial discretion broadly, without distinguishing the var-ious types of exceptions to removal, such as DACA-related excep-tions.

Additionally, prosecutorial discretion statistics may be inaccurate because enforcement officers may not document every encounter with aliens it considers to be a low enforcement priority. ICE offi-cials told us that field personnel often do not record their use of prosecutorial discretion because it is too time-consuming. As a re-sult, data that supports decisions on the use of prosecutorial discre-tion may not be available.

DHS should ensure it can support its decisions with solid data. A feedback mechanism for the use of prosecutorial discretion could help DHS identify gaps, set goals, determine budget requirements, and provide information to improve program performance. In terms of overall immigration enforcement policy, such a mechanism could help develop sound future programs and policies. In addition to as-sisting in the overall policymaking process, capturing the right in-formation would allow the Department to ensure that the proper and evenhanded application of the policies exist.

As it stands now, there’s no mechanism by which to assess the reasonableness of an individual officer’s exercise of discretion to compare prosecutorial discretion decisions for similarly situated aliens or to compare the use of prosecutorial discretion by various field offices. This data, if collected, could also be used to evaluate the performance of individual officers or field offices.

Uneven or inconsistent policy enforcement can have a negative effect on DHS’ immigration enforcement mission. Here because the Department does not collect data on, much less monitor the use of prosecutorial discretion, we are unable to determine whether the Department is using prosecutorial discretion consistently or fairly.

The Department agreed with our recommendations in our audit to improve collection and analysis and reporting of data on the use of prosecutorial discretion. DHS is planning a multipronged ap-proach for assessing and accounting for its immigration enforce-ment efforts. We believe such a strategy is particularly important given that over the last two fiscal years, ICE, CBP, and USCIS col-lectively received on average about $21 billion annually for immi-gration enforcement.

Chairmen DeSantis and Jordan, this concludes my prepared statement. I’d be happy to answer any questions you or members of the committee may have.

[Prepared statement of Mr. Roth follows:] For complete submitted testimony, please see the following

website:


ING

-643

0 w

ith D

IST

ILLE

R

11

https://oversight.house.gov/hearing/a-review-of-the-presidents- executive-actions-on-immigration/

Mr. DESANTIS. Thank you, Mr. Roth. Chair now recognizes himself for 5 minutes. Ms. Saldana, you recently reported to the Senate that 121 illegal

aliens that had been released by ICE between fiscal year 2010 and 2014 had been arrested for homicide since they were released. How many total homicides have these 121 individuals been charged with?

Ms. SALDANA. Beyond the specific information—— Mr. DESANTIS. Can you hit your microphone, please. Ms. SALDANA. I’m sorry. Beyond the specific information we pro-

vided with respect to the homicide, I think we broke down the in-formation, and I can’t tell you whether there are other homicides involved.

Mr. DESANTIS. So you just know that those folks have been charged with a homicide, but it doesn’t rule out that they could have been charged with multiple homicides. Is that correct?

Ms. SALDANA. I can’t say sitting here today that that’s not the case.

Mr. DESANTIS. And do you know at this point how many convic-tions have resulted from those charges?

Ms. SALDANA. No. I don’t. Mr. DESANTIS. Is that something that you’re interested in finding

out? Ms. SALDANA. Certainly. I think we have, as the inspector gen-

eral has pointed out, we’re working on our systems to try to be more flexible and responsive. We get a lot of inquiries with—in all shapes and sizes, which we’re trying to make our information sys-tem more flexible, and that’s taken a little time. But, yes, abso-lutely, we’re interested in that information, like I know you are, sir.

Mr. DESANTIS. Do you know if any of those individuals had been convicted of a homicide-related offense before they were released by DHS?

Ms. SALDANA. I do not have that information. I don’t believe that’s the case.

Mr. DESANTIS. Okay. But that’s obviously something that’s im-portant to know. What, if any, changes does ICE plan on making in light of the fact that you do have 121 individuals who were in ICE custody, were in the country illegally, have been released, and now have been charged with committing homicides. And just the way our criminal system works, I mean, most people who get charged end up getting guilty. I mean, let’s just—it’s probably over 90 percent. Let’s just say it’s 60 percent. That’s a lot of people who have been killed. That’s a lot of families who have lost loved ones, and they can look at ICE and say: Look. Had you just done your job better, maybe my family member would be here today. So what policy changes are you going to make to prevent that from hap-pening in the future?

Ms. SALDANA. And I will say that is particularly disturbing, I know, to all the members of this committee and to myself as a prior U.S. Attorney in north Texas, and Dallas based. That is


ING

-643

0 w

ith D

IST

ILLE

R

12

something that we’re always trying to do is to find criminals and to convict them. As a result, when I first came here——

Mr. DESANTIS. Well, and you probably did that very well. I know people on the state level in Texas and other places do it very well. The problem, though, is, is if they’re going and they’re being con-victed and then ICE knows that they’re not here legally, and we know they’re convicts, and yet they still get released into society. And, in 2013, I know you weren’t ICE director then, 2013 DHS re-leased 36,000 individuals who were in the country illegally had been convicted of crimes. They provided the crimes to us, and they included homicide. They included rape. They included drug traf-ficking. Some very, very serious offenses. 2014, you had 30,000 in-dividuals, again, who were in the country illegally convicted of crimes and yet still released by DHS.

And so the local and Federal law enforcement officers and the prosecutors, they play an important role, but if DHS is then going to release people who have been proven to be a danger to society into the public, well, then that leaves more Americans to be victim-ized by, in some cases, very violent crimes.

Ms. SALDANA. And that’s why, Mr. Chairman, I established a procedure that I announced back in March for greater oversight over the release of any person who had a prior—serious prior con-viction. In particular, I’m asking people to sign off a piece of paper the original person who makes the determination with respect to either custody or bond. I’m asking their supervisors to review it. I’ve actually put together a panel in headquarters which looks over all of these decisions to determine whether or not they were based on the facts and circumstances known to the individual and that they were right decisions. As I mentioned earlier, this——

Mr. DESANTIS. And if they’re not right decisions, what happens? Because I mentioned the 36,000 in fiscal year 2013. These are folks that have been convicted in our courts of, in many cases, very seri-ous offenses. They weren’t in the country legally, they’re released, and now, even at this point in 2015, of those 36,000, by DHS’ own figures, 1,000 of those people have already been convicted of new crimes again in the future. And so, clearly, there is a breakdown there. So when that is not followed, what happens? Who is held ac-countable? Does anyone lose their job?

Ms. SALDANA. It could be, sir. We’ll just have to see. Mr. DESANTIS. Has anyone lost their job—— Ms. SALDANA. Not yet. Mr. DESANTIS. —since you have been ICE director? Ms. SALDANA. No. Not in—— Mr. DESANTIS. So the 1,000 new convictions that we have seen

for people who had already been convicted, there’s not been any ac-countability within ICE for that. To me, that’s a major failure. Be-cause if I were somebody whose family member was victimized by a crime, I would want to know: Well, wait a minute. You guys should have known. The President’s policy is, you know, we’re going to go after the criminals, zero tolerance. We’re going to make it happen, and yet that hasn’t happened. So what do you say to the families who’ve seen the—who’ve been victimized?

Ms. SALDANA. If I may, sir, I would say that those are tragedies. And I wish that our deportation officers and others making these


ING

-643

0 w

ith D

IST

ILLE

R

13

decisions were omniscient and could see into the future and into the heart and soul of these individuals, but we go by the facts that we know——

Mr. DESANTIS. A criminal conviction for, say, aggravated assault, that’s not looking into the future, that’s looking into the past. I mean, as a prosecutor, if you have people who run afoul with the law and get convicted of violent criminal activity, those are people that are much more likely to commit crimes in the future than somebody who’s never committed a crime in their life. So it’s not just saying that this is all just trying to look into the future and you need clairvoyance; you can judge whether somebody’s a threat to society based on their past conduct.

Ms. SALDANA. If you—if you’ll allow me to finish my answer, Mr. Chairman, I would really appreciate it because I think the Amer-ican people have a right to know the full picture here.

Every decision we make, there is not a single deportation officer or other agent within ERO who wants to let a dangerous criminal out in the streets to threaten the public. I can guarantee and as-sure you of that. They are law enforcement officers. And with re-spect to the ability—we have got to look at the record as it is. We don’t look at one single factor. We do look at the age of—just like a court of law, the Federal courts in which I practiced. They look at many different factors to determine whether to release an indi-vidual, and we are bound by some of the numbers that you threw out by the Supreme Court in its decision with respect to not being able to detain people beyond 6 months, typically. And the immigra-tion courts that set bond and release some of these folks as well. So that is the complete picture and that’s what I can assure you of is I’m committed, and I have been doing this since I stepped into this position back in January to keep that number down and to try to avoid future tragedies like the ones you have described.

Mr. DESANTIS. Point taken. Now, you said that there are mul-tiple factors, so you can’t just look at one thing. So maybe someone has a blemish on their criminal record, but there’s other factors. You mentioned age. Answer me this, because there have been peo-ple that have been convicted of sexual assault who have been re-leased, and by ICE’s own admission, it wasn’t because they—the 6 months was up. Sometimes that happens, but there are other peo-ple who did not, where they were discretionary releases. So what other factors would outweigh a conviction for a sexual assault against a woman or a child, and why would we want that person in our society?

Ms. SALDANA. This Congress and in this elaborate system that we’re talking about has entitled the individuals to bond and have said things like the age of the criminal conviction, the nature of the crime——

Mr. DESANTIS. No. I understand that. But how does that out-weigh the seriousness of the offense when you’re talking about peo-ple who’ve committed sexual assaults, crimes against children, crimes against women? That’s what I don’t understand. I under-stand if somebody got a speeding ticket or something, but some of those I think there’s broad agreement in the American public that that is not something that we want to see where ICE is facilitating people to be back on the street.


ING

-643

0 w

ith D

IST

ILLE

R

14

Now, I have I’m over my time. So I appreciate you answering the questions. I know some of my colleagues will have more, and I am going to now recognize Mr. Lynch for 5 minutes.

Mr. LYNCH. Thank you, Mr. Chairman. You know, the way we approach the question, the wider question

of immigration is really based on what narrative that we use. This committee, this hearing is set up on a narrative that really looks at illegal immigrants who have committed heinous crimes, homi-cides. And so someone using that narrative will have a very nega-tive view towards immigration policy because you’re looking at that consequence.

There’s another narrative, though. I had an opportunity as part of this National Security Subcommittee to visit, with the former chairman Mr. Issa, we went to Kandahar, Afghanistan, and I was honored. I have to say I was honored to be asked to participate in an immigration—citizenship ceremony. So here I am at this God-forsaken forward-operating base when about 100 young Marines, men and women, surprised at the number of young women, took the oath of citizenship for this country. Every one of them a noncit-izen in American uniforms fighting for this country in a very dif-ficult war zone from 19—and out of those, about 100 marines, a few soldiers as well—19 different countries, from Guatemala to So-malia to Ethiopia to Mexico. And, you know, I was standing there, and we had a chance to spend the afternoon with these young sol-diers and marines, and I could not help but think about the quote that John F. Kennedy made famous. He said: Ask not what your country can do for you, but ask what you can do for your country.

And I’m thinking, these young soldiers, these young marines, standing in the place of American citizens in a tough, tough war zone, chasing the Taliban up and down that province—and they’re not even citizens—trying to be—trying to be American citizens for all the right reasons, if you take that narrative and you see the good, the good, that is possible by adopting an immigration policy that actually values that desire to be part of this country for all the right reasons, you take a whole different—a much more hopeful view of immigration policy and what we could accomplish if we got it right.

So, Ms. Saldana, or Director Saldana, I want to ask you about some of your comments earlier. You were talking about—look, we all know that if we got sequestration or even the proposed budget is $500 million below sequestration, which really cuts into your ability to do your job, and I’ve seen numbers that say that 85 per-cent of ICE’s removals from the United States in 2014 were con-victed criminals. So it sounds like you’re meeting your priorities.

I’m just wondering what impact—what impact is this going to have in going after the, you know, your priority—you said it was National security. So that’s going after terrorists and those in-volved in espionage, criminal activity——

Ms. SALDANA. Gangs. Those—— Mr. LYNCH. So how will this— tell me a little bit about how this

might affect your ability to do your job and to try to make sense of this somewhat dysfunctional immigration policy that we have right now.


ING

-643

0 w

ith D

IST

ILLE

R

15

Ms. SALDANA. Well, I’m glad you asked that question because we have had a number of things working against us and increasing our expenses. For example, obviously, the influx of families, women and children, require even greater services than others. Those beds are much more expensive than a regular adult bed that you would have. We have operations that we conduct because we cannot get people from the State system immediately with some jurisdictions not cooperating with us. We have operations we have to conduct where we pull people off of their regular duties and go out and try to find dangerous criminals. That not only exposes the officers to safety issues, but it also can be a very detrimental situation with respect to the family who is present at the time that the officers show up. So, to us, even the disruption that occurred back in March, before March, with respect to not having even any kind of guarantee with respect to our 2015 budget, it wreaked tremendous havoc, never mind the 20,000 employees who would not be receiv-ing a paycheck if sequestration continues in this manner.

Mr. LYNCH. Right. Now, do you do any work with the victims on the victim side——

Ms. SALDANA. Absolutely. Mr. LYNCH. —in these cases, and is that piece going to be af-

fected as well? Ms. SALDANA. Yes. And I’m glad you mentioned that, because we

often forget, it’s not just ERO, but its HSI, our Homeland Security Investigation side of the house, that is affected by these budget constrictions. We—and they help us with respect to these smug-gling networks. As I mentioned in my opening statement, not only do we have to take care of the families once they get across, but we ought to do the best we can to dismantle those smuggling orga-nizations that put them at peril and bring them over into this country. So, yes, sir, that’s a more complete picture.

Mr. LYNCH. Very good. Thank you. Mr. Chairman, I yield back. Mr. DESANTIS. The gentleman’s time’s expired. The chair now recognizes Mr. Jordan for 5 minutes. Mr. JORDAN. Thank you. Director Rodriguez, President issues his executive order on No-

vember 20 of last year. Court case ensues. There’s a hearing on the preliminary injunction January 15, 2015. Your counsel represents to the court: No applications for revised DACA would be accepted until the 18th of February. No action would be taken on any of these applications until March 4.

Did you know at the time that your counsel was misrepresenting the facts?

Mr. RODRIGUEZ. No. And I’m not sure I would characterize it that way, Congressman. The fact was that beginning on November 24, for individuals who were applying for either——

Mr. JORDAN. It’s pretty clear—if I could just interrupt for a sec-ond, Mr. Rodriguez. It’s pretty clear your counsel said, ‘‘Just to be clear, Your Honor,’’ and he reemphasized that point that no appli-cations going to the 3-years deferrals would happen until at least February 18—or, excuse me, March 4, and yet the case—isn’t it true that you had had 100,000 of these applications—or not appli-


ING

-643

0 w

ith D

IST

ILLE

R

16

cations, but these actual 3-year deferrals go out to 100,000 individ-uals?

Mr. RODRIGUEZ. 100,000 individuals under the original 2012 DACA program who were being granted 3-year work authorizations rather than two.

Mr. JORDAN. Exactly. Exactly. Mr. RODRIGUEZ. I won’t characterize my counsel’s comments. Mr. JORDAN. Well, I mean, the judges said it. They were mis-

represented to the judge. I’m saying did you know at the time that counsel for your side of the case misrepresented that fact to the judge?

Mr. RODRIGUEZ. I was not aware of the statement made by my counsel at that time.

Mr. JORDAN. When did you learn that there had been a misrepre-sentation to the court?

Mr. RODRIGUEZ. I learned that the court believed that there had been a misrepresentation in March when we first informed the court in an attempt to be 100 percent clear with the court that we had in fact granted roughly 108,000 3-year work authorizations be-ginning on November 24, long before the lawsuit was even filed.

And, by the way, Congressman, openly. Mr. JORDAN. Yeah. So you informed the court when? Mr. RODRIGUEZ. We advised the court, I believe, at the beginning

of March. It would have been something like March 3 or March 4, when of our own initiative in order to be 100 percent frank and clear with the court our counsel took the initiative to advise the court that we had——

Mr. JORDAN. Okay. You advised the court on March 3 or 4, early March. When did you first learn that there may be a problem?

Mr. RODRIGUEZ. We in—immediately after the injunction, we dis-cussed the existence of these 108,000 3-year authorizations, again, individuals under the original 2012 program. This would have been sometime in the few days after the injunction was issued——

Mr. JORDAN. I’m looking for a date because you have got to re-member the context, though, Director Rodriguez. We were having an important debate here in Congress relative to the Department of Homeland Security funding bill. The judge issues his injunction on February 16. You’re telling us: A few weeks later, we went on our own, just out of the kindness of our heart, even though the judge thinks you misrepresented the case to him, out the of kind-ness of your heart, you told the judge sometime early March, but that DHS bill came due on February 27. You said you knew about this shortly after the injunction. So sometime between February 16 and February 27, you learned of it. I’m wondering why you didn’t tell us right away or tell the judge right away, which we would have known about and the American people would have known about.

Mr. RODRIGUEZ. We told the court within a couple of weeks of the injunction in an effort to be candid with the tribunal, which our counsel felt that it was their obligation, and which certainly had I been counsel, I would have had the same attitude as well. We wanted to make sure that the court understood that.

Mr. JORDAN. All I’m saying is it would have been nice in the heat of that debate, frankly, debate that the whole country was having,


ING

-643

0 w

ith D

IST

ILLE

R

17

if we’d have had that information before the deadline of the DHS bill, which is February 27. You’re telling me you knew there could be a problem, and you decided to tell the judge, but you waited until after the 27th.

Mr. RODRIGUEZ. Congressman, I’m not sure I agree with the characterization. The fact is we told—once we understood that this was an issue that the court may not have understood, we made the decision to let the court know. It was our intention at all times to be candid with the court, and what I underscore is that we were— we had this up on our Web site. This was included in our filings with the court that the directive was to issue 3-year work author-izations immediately. That was part of our initial——

Mr. JORDAN. Well, I tell you what would have been a lot nicer. What would have been a lot nicer is if the counsel for your side, when they were in front of the judge, would have told him what you told the court, would have told him, ‘‘Hey, there’s already been 100,000 go out,’’ instead of misrepresenting it to the court and say-ing, ‘‘That’s not going to happen until sometime in February, some-time in March.’’ That would have been better. But, the fact, that you learned before the 27th day and waited to tell the judge and, therefore, Congress and the American people until after the DHS bill, I think’s relevant.

Last question if I could, Mr. Chairman. Mr. Roth, have you looked into this issue? Mr. ROTH. We are in the process of doing the field work on this,

yes. Mr. JORDAN. And what does that mean, Mr. Roth? Is that going

to be a report sometime soon, or when are we going to have some-thing that—when’s your investigation or audit going to be done?

Mr. ROTH. Sure. We’re conducting interviews as we speak, re-viewing emails, doing the kinds of things that we would typically do. My projected timeline is hopefully weeks, not months, but I can’t give you a firmer date than that.

Mr. JORDAN. Thank you, Mr. Chairman. Mr. RUSSELL. [Presiding.] The chair now recognizes the gen-

tleman from Pennsylvania, Mr. Cartwright, for 5 minutes. Mr. CARTWRIGHT. Thank you, Mr. Chairman. Well, Mr. Rodriguez, I want to spend a little more time exploring

USCIS’ rollout of DAPA and expanded DACA. DAPA meaning De-ferred Action for Parents of Americans. In light of the Texas Fed-eral Court decision, Director Rodriguez, I understand you have taken great pains to comply with the Texas Federal Court’s injunc-tion. Is that correct?

Mr. RODRIGUEZ. That is correct, Congressman. Immediately, lit-erally, this—the court’s injunction became known to us around 11:30 p.m. On Presidents’ Day. By 1 o’clock in the morning we had issued a directive to cease all implementation of either the ex-panded DACA policy or the DAPA policy, including to halt any issuance of 3-year work authorizations.

Mr. CARTWRIGHT. Okay. So you immediately swung into action to enforce this injunction. Right?

Mr. RODRIGUEZ. That is correct, Congressman, including rolling back materials on our Web site, forms, instructions, in order to ab-solutely comply in every respect with the court’s injunction.


ING

-643

0 w

ith D

IST

ILLE

R

18

Mr. CARTWRIGHT. Okay. Now, I understand that DHS has admit-ted that some work authorizations were provided after the court’s injunction was ordered, and your written testimony makes it clear, ‘‘USCIS also took immediate steps intended to ensure we ceased issuing 3-year work permits.’’ Director Rodriguez, can you describe what those immediate steps were and why they didn’t work?

Mr. RODRIGUEZ. The concrete immediate step that was taken was that all of those work authorizations that we’re talking about were in a—what is essentially a giant print queue. What was supposed to—and so we halted them, and what was supposed to have oc-curred is that they should have been essentially reversed and sent back to the immigration services officers who were reviewing the case. Instead, there was a miscommunication which led those print orders to go to the contractor that actually prints the 3-year work— 3- or 2-year work authorizations, as the case might have been, and they were printed.

We discovered this in the process correcting other errors that we had made and immediately notified on our own initiative both the States and the court. We have advised all of the affected requesters of the fact that they are getting 2- rather than 3-year work author-izations. We have required them to return their 3-year work au-thorizations. In fact, close to half of them already have, and are——

Mr. CARTWRIGHT. Let me stop you there. So what you’re telling us is that it wasn’t that you got caught

or somebody blew the whistle on you, you picked up the error on your own. Is that correct?

Mr. RODRIGUEZ. Well, let me characterize it. We caught our-selves.

Mr. CARTWRIGHT. Caught yourselves and you reported your-selves——

Mr. RODRIGUEZ. That is correct, Congressman. Mr. CARTWRIGHT. —is that right? Mr. RODRIGUEZ. Yes. Mr. CARTWRIGHT. And that was all out of an effort to be candid

with the tribunal in Texas. Mr. RODRIGUEZ. That is correct, and also, frankly, to be fair with

our customers and let them know exactly where they stood with re-spect to their cases.

Mr. CARTWRIGHT. And then you went to the people that got the 3-year work authorizations and started to explain to them that they didn’t—they weren’t getting 3 years, they were getting the 2 years, as they supposed to.

Mr. RODRIGUEZ. Each and every one of them, Congressman, was sent a letter advising them of the error, directing them to return their 3-year authorization and advising them that they would be given a 2-year authorization.

As I indicated, we have already recaptured a number of those 3- year work authorizations and are issuing 2-year authorizations.

Mr. CARTWRIGHT. All right. Well, Director Rodriguez, this here is Washington, D.C., and we don’t blow anything out of proportion here.

Mr. RODRIGUEZ. Oh, no, sir. Never. Never.


ING

-643

0 w

ith D

IST

ILLE

R

19

Mr. CARTWRIGHT. But, nevertheless, some reports have indicated that the USCIS intentionally failed to comply with the Texas Fed-eral Court’s injection. Director Rodriguez, I just want to clear this up once and for all. How would you react to those criticisms?

Mr. RODRIGUEZ. Congressman, I’m a public servant. I am an offi-cer of the court as an attorney. I think you have already observed, we actually owned up to the error that we had made. That makes it fairly clear that the intent all along had been to comply with the court’s order.

Mr. CARTWRIGHT. All right. Now, as it currently stands, are you moving forward with plans to process DAPA applications at that facility?

Mr. RODRIGUEZ. In absolutely no respect, Congressman. As I said, we immediately, literally within minutes, halted all activities that amounted to the implementation of either the expanded DACA or the DAPA program immediately upon the court’s injunction. No policies have been developed. No people have been hired. Nothing has been done to implement those programs.

Mr. CARTWRIGHT. Well, I thank you for your work, and I yield back.

Mr. RODRIGUEZ. Thank you, Congressman. Mr. RUSSELL. The gentleman yields back. The chair will now recognize himself for 5 minutes. I do appre-

ciate your service. And when we have had you here in hearings be-fore, it is obvious that you serve administration to administration in attempts to make our system both lawful and to secure our country.

However, that doesn’t necessarily negate the fact that we still have problems. As Mr. Lynch pointed out earlier about those that were enlisted on fields of battle to gain their citizenship, I just might point out, having commanded some soldiers in foreign fields in that category, they were legally here in this country and had been properly vetted with no criminal histories.

And that’s the essence of what we’re getting at here today is within the constructs of enforcing the law and doing these things that we must do, we can’t just let policies, political, regardless of administration, take away our immigration process and result in the crimes that we are discussing, penetration of our borders that weaken our national security and could open us up even to ter-rorist attack.

Mr. Roth, is it correct that the Department does not collect and analyze data on the use of prosecutorial direction?

Mr. ROTH. That is correct. Mr. RUSSELL. Can you explain why this is significant? Mr. ROTH. Yes. It’s best to do it by example. For example, if ERO

officers go into, say, a house to look for a specific violent felon, there might be three or four other individuals that would be sus-ceptible to deportation. By the fact that those officers exercise pros-ecutorial discretion on those individuals means it’s really invisible to the policymakers as to, one, who’s exercising prosecutorial dis-cretion and why? Is it uniform across the country? Should it be uni-form across the country? Are there categories of individuals for, perhaps, we should not exercise prosecutorial discretion, in other words, try to refine the policy as we go? It’s really a fundamental


ING

-643

0 w

ith D

IST

ILLE

R

20

sort of precept of good government that you ought to be able to record and measure the activities that you do.

Mr. RUSSELL. Well, did DHS explain what data it reviewed in setting those priorities for apprehension, detention, removal of un-documented immigrants, illegal aliens?

Mr. ROTH. They did not as far as prosecutorial discretion. Obvi-ously, they capture a number of different data points of information with regard to the number of apprehensions, the number of depor-tations, those kinds of things, estimates of the number of individ-uals illegally in the United States. But they do not capture what we think is an important thing, which is the exercise of discretion.

Mr. RUSSELL. I think on this theme, part of the concern is that these data gaps weaken our immigration enforcement efforts. Di-rector Saldana, I have read reports where ICE agents have com-plained they have not been able to access alien criminal history. What is being done to take corrective action on criminal history record access to make sure that they can see the problem before it becomes a problem?

Ms. SALDANA. And, actually, I’ve actually sat down and run through our data points and all the information that an officer may have available to them at the time of apprehension, booking, what-ever. And there is criminal information that comes through the NCIC and the FBI database with respect to prior convictions.

I will say, the inspector general, that we agreed and concurred that we could be more systematic about our collection of data. But we do have a lot of information on the exercise of prosecutorial dis-cretion. The issue, I understood, was it’s not systematic. And that’s what we’re working towards. In other words, our lawyers, for ex-ample, because prosecutorial discretion can be exercised at any point of an immigrant’s processing or going through the process, keep a record of when they exercise prosecutorial discretion.

With respect to detention and bond decisions, that exercise of prosecutorial discretion is recorded. The issue is and the reason we concurred with the ultimate finding was we are currently work-ing—and have been actually for several months—on systematically recording that information and consistently. You can imagine a law enforcement officer out there in the field trying to do his job, knocking on a door at 6 in the morning and, yes, they may not stop to——

Mr. RUSSELL. I know you have had some efforts in the Intensive Supervision Program, and that’s laudable. But the problem is what is being done to ensure that the Intensive Supervision Program is maintained until the immigration status of the individual is deter-mined? Right now, there have been identified gaps where that su-pervision is neglected before their immigration status is done. And why is that? And what will you do to correct that?

Ms. SALDANA. Well, actually, that’s what I’m saying. I think we have, and I think it was noted in the report, we have, the Depart-ment itself, not the agency, has been working to make this system-atic actually across all the agencies, this information database, and have committed to working that. I’m not even sure right now I can remember where the report noted, the hope is that we can get that completed some time this year. But that is a huge effort that is


ING

-643

0 w

ith D

IST

ILLE

R

21

being undertaken by our policy people and our technical people. And I think it’s very well underway. It just takes time.

Mr. RUSSELL. Well, I appreciate those answers. Unfortunately, as time moves by, we see some drastic consequences. I am out of time.

And I will now recognize the gentleman from California, Mr. Lieu.

Mr. LIEU. Thank you, Mr. Chair. I would like to spend some time discussing an issue that is very important to me and to many Members of Congress and that is the continued detention of women, children, and infants in prison-like conditions. As you know, in 2009, the Department of Homeland Security shut down the Texas, Hutto, a jail-like family facility, because it was inhu-mane, because of reports of abuse, and harsh conditions.

So I was surprised in your testimony that you said your agency is opening up additional facilities. And that’s particularly sur-prising to me because, as you know, the American Immigration Lawyers Association has stated that virtually all of these folks can qualify for asylum because they are fleeing terrifying conditions of violence, abuse, and crime, and they have a fear of removal.

You also know that last November, Homeland Security Secretary Johnson wrote in a memo, and ‘‘Field office directors should not ex-pend detention resources on aliens who are pregnant or nursing, who demonstrate that they are primary caretakers of children or an infirm person or whose detention is otherwise not in the public interest.’’

So, in light of that guidance, I’m asking, why does ICE continue to expend precious resources to detain thousands of families en masse, including children and infants, in prison-like conditions?

Ms. SALDANA. Congressman, I want to be sure that I wasn’t— that I didn’t misstate something. We do not have more new facili-ties that are being opened. We did, we do have Dilley with addi-tional space that was opened. It’s the same residential center. We have three across the country: One in Dilley; one in Karnes; and one in Berks, Pennsylvania.

But with respect to your question, we, you know, up until actu-ally the surge last summer and the spring, we had one facility es-sentially in Berks, Pennsylvania, with 100 beds. We had to get going quickly to ensure that we had someplace to put these fami-lies and the children in sanitary, good, humane facilities. I’ve been to both Karnes and to Dilley. I’ve toured the entire facilities. This is detention. It’s not prison. I think, in fact, sir, that people have repeated the idea that there are, there is barbed wire at our family residential centers and that the guards are armed. One only has to step into the facility to see that those claims are false.

Mr. LIEU. Thank you. I think 135 Members of Congress would disagree with you. On May 27 of this year, I joined them and signed a letter that said to Secretary Johnson, we are troubled by the Department of Homeland Security’s continued detention of mothers and children in secure, jail-like facilities. And it describes some of what happens. We are disturbed by the fact that many mothers and children remain in family detention, despite serious medical needs. In the past year. We have learned of the detention of children with intellectual disabilities, a child with brain cancer, a mother with a heart disorder, and a 12-year-old child who has


ING

-643

0 w

ith D

IST

ILLE

R

22

not eaten solid food for 2 months. We also learned of a 3-year-old child who was throwing up for 3 days and was apparently offered water as a form of medical treatment. It was only after the child began throwing up blood on the fourth day that the facility finally transferred her to a hospital. This is simply unacceptable. We can-not continue to hear reports of serious harm to children in custody and do nothing about it.

So, Mr. Chair, I would like to enter this letter into the record. Mr. RUSSELL. Without objection. Mr. LIEU. I would also like to enter a letter into the record dated

June 1, 2015, from 33 Members of the Senate that says similar things. And then I would like to quote from this report, one of many, called ‘‘Locking Up Family Values Again,’’ a report on the practice of family detention by the Lutheran Immigration Refugee Service and the Women’s Refugee Commission.

Mr. LIEU. It opens up with a quote from the advocacy director of Human Rights Watch: Karnes was quite the visit for me. There’s nothing like walking into a prison, and the first thing you hear is a crying baby, two things that should never go together, never ever.

So I note in your testimony that you call these facilities family residential centers. It is so positive sounding. It’s like a place you might see at Disney World. These are actually jail-like facilities. They should be called family prison facilities or family detention fa-cilities or family jail facilities but not family residential centers. And every time you use that term, you’re misleading the American public. So I’m going to ask you, will you stop using that term and call it what it is?

Ms. SALDANA. No, sir. Have you visited—— Mr. LIEU. Just note, now that you are on notice, every time you

use that term, I believe you will now be intentionally misleading the American public.

And I yield back. Ms. SALDANA. I’m sorry you feel that way, Congressman. I would

love to take you through to one of our centers. Mr. LIEU. Me and 135 Members of Congress feel that way and

33 Members of the Senate still feel that way. Mr. RUSSELL. The gentleman has yielded back. And the chair will now recognize the vice chairman, Mr.

Mulvaney from South Carolina, for 5 minutes. Mr. MULVANEY. Thanks very much. Reset the clock please. Ms. Saldana, who do you report to? Ms. SALDANA. The Secretary of the Department of Homeland Se-

curity, Jeh Johnson. Mr. MULVANEY. And then he reports to the President? Ms. SALDANA. Yes, sir. Mr. MULVANEY. Great. Could we run the video please? You have a chance to follow along on the video screen for the

next 2 minutes or so. Let me follow up on a couple different things then. You said be-

fore that there were communities and local governments that were denying you access. Tell me about that.

Ms. SALDANA. This is one of the challenges I mentioned in my opening statement, sir. And I enlist the help of anybody that I can get help from on this issue. Because our biggest priority is crimi-


ING

-643

0 w

ith D

IST

ILLE

R

23

nals, convicted felons in particular, we need to work with State and local jurisdictions who are apprehending undocumented workers for offenses against State and local law. They have them in their cus-tody. We can now communicate with the State and local jurisdic-tion and get some notice in advance through our detainer request to let us know that they’re about to release them because they’ve served their State custody sentence and that we can take posses-sion of them because of their violation of the law, and now we have a convicted criminal here.

Mr. MULVANEY. But they’re denying you the ability to do that? Ms. SALDANA. Some jurisdictions are. Mr. MULVANEY. Why? Ms. SALDANA. I can’t speak for them. I will tell you it is, some

of them have policies and laws that are—— Mr. MULVANEY. Do you believe that you have—I’m sorry to cut

you off—do you believe you have the legal right to force them to comply with your request?

Ms. SALDANA. We do not have, I cannot say that the detainer no-tices are mandatory. They are definitely discretionary.

Mr. MULVANEY. Would it surprise you if the administration had taken a different position on that in the recent past?

Ms. SALDANA. Well, we have argued that, and there’s pending litigation everywhere on this topic. I think you may be familiar with the Oregon case. But we are trying to work——

Mr. MULVANEY. Would it help you if we clarified the law to make it clear that it was mandatory that those local communities cooper-ate with you?

Ms. SALDANA. Thank you, amen, yes. [video shown.] Mr. MULVANEY. Thank you. That was Thursday, March 19. Be-

fore the papers got printed the next morning, you had retracted that statement. And you went on to say that any effort at Federal legislation now to mandate State and local law enforcement’s com-pliance with ICE detainers will, in our view, be highly counter-productive. So my question is, after you gave that testimony, did you talk to Jeh Johnson or anyone in his office?

Ms. SALDANA. Yes, I have. Mr. MULVANEY. Okay. I’m sorry, let me be more clear. Between

the time that you gave that testimony and the time you retracted that statement later that afternoon, did you talk to anybody at Jeh Johnson’s office?

Ms. SALDANA. Yes. Mr. MULVANEY. What did they tell you? Ms. SALDANA. What did they tell me? They asked me what I

meant by that. And that’s what my statement was. It was not a retraction, sir.

Mr. MULVANEY. Oh, no, it was absolutely a retraction. Ms. SALDANA. It was a clarification of the fact that, I’m used to

the law enforcement—— Mr. MULVANEY. I can play it back again, Ms. Saldana, if you

want to. But everybody here knows it was a retraction. That’s fine. There’s nothing wrong with retracting statements. People do it all the time. But I asked you if you would like some help in getting


ING

-643

0 w

ith D

IST

ILLE

R

24

the localities to cooperate with you, you said, ‘‘Thank you, Amen, yes.’’ And we all said: Great, we think we can do that.

And that night, you said any effort to do that would be counter-productive. And I’m asking you, did Jeh Johnson ask you to change your statement?

Ms. SALDANA. He did not. Mr. MULVANEY. Did anybody else ask you to change your state-

ment? Ms. SALDANA. Change the—no. Mr. MULVANEY. Did Jeh Johnson ask you to clarify your state-

ment? Ms. SALDANA. We discussed a clarification to make sure people

understood that we need to work with State and local governments to ensure public safety in our communities.

Mr. MULVANEY. So when I asked you if we could help you by re-quiring State and local governments to cooperate with you and you said, ‘‘Thank you, Amen, yes,’’ that meant, ‘‘Thank you, Amen, no,’’ is that what you’re telling me now?

Ms. SALDANA. No. Mr. MULVANEY. Do you still want us to help you force the local-

ities to cooperate with you on turning over criminals to your agen-cy?

Ms. SALDANA. Sir, the forcing part is the issue. The forcing is not going to bring these people to the table. It’s the efforts of all of us to make clear that this new program——

Mr. MULVANEY. Would you like us to pass a law that would re-quire local governments to turn dangerous illegal immigrants di-rectly over to ICE?

Ms. SALDANA. No. Mr. MULVANEY. Why not? Ms. SALDANA. Because we’re in the middle of—not only myself

and our employees at ICE—— Mr. MULVANEY. You have given testimony that says—— Ms. SALDANA. May I finish, sir? Mr. MULVANEY. No. You may not. You have given testimony that

says that one of the reasons you’re concerned about the lack of co-operation is the safety of your agents. If we were to pass a law that would require towns and cities to turn dangerous criminal illegals directly over to your agents, would that make your agents safer?

Ms. SALDANA. We’re working right now with those State and local jurisdictions in order——

Mr. MULVANEY. Great answer to a question I did not ask. If Con-gress were to pass a law to do that, would your people be safer?

Ms. SALDANA. If you passed a law requiring them? Mr. MULVANEY. Yes. Ms. SALDANA. I don’t know that that can happen, sir, because

we’re in the middle of discussions with State and local—— Mr. MULVANEY. I didn’t ask you that. If we did it, would it make

your—we all know the answer, and the answer is yes. I will get a chance to ask you the last question, the question is this, apparently either you or Jeh Johnson wants to put the politics ahead of the safety of your people. And I find that absolute unacceptable.

Thank you, Mr. Chairman.


ING

-643

0 w

ith D

IST

ILLE

R

25

Mr. RUSSELL. The chair now recognizes the gentlelady from Illi-nois, Ms. Kelly.

Ms. KELLY. Thank you, Mr. Chair. Ms. Saldana, would you say what you wanted to say?

Ms. SALDANA. Yes. And that is my interest is in public safety and the safety of our officers. And if we are allowed a period of time to work with State and local jurisdictions in order to accomplish what I hope this committee wants to accomplish, and that is re-moving serious criminal convicted aliens from the United States, then that’s what we’re working towards. And that’s how we got Los Angeles to say they would cooperate with us and Contra Costa, as well, in California. And we’re working with several other jurisdic-tions. Always best, always best to try to get people to come to the table and discuss matters than to force things down their throats.

Ms. KELLY. Thank you. Mr. Roth, I have reviewed your report from last month on the

Department’s need to strengthen data collection for its enforcement efforts. I think we all agree that, ideally, DHS would always be col-lecting more, not less, data. I would like to explore how this can best be done when resources may already be stretched thin. Last November, the Department’s memo on exercising prosecutorial dis-cretion stated, ‘‘It is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources.’’

Director, do you agree with that? Ms. SALDANA. Yes. Ms. KELLY. And can you explain specifically how the use of pros-

ecutorial discretion helps preserve ICE’s resources? Ms. SALDANA. As I testified earlier, I am, up until December 16

or 22, I was the United States attorney for North Texas, respon-sible for 100 counties, working with 100 different jurisdictions lo-cally, as well as local police departments. I had the responsibility for over 3,000, the enforcement of over 3,000 Federal statutes as a United States attorney. There’s no way with 100 lawyers that I could bring to bear enforcement of all those laws.

So part of my job, and it’s a difficult part, is deciding which cases will have the greatest impact on community safety because I can’t take every one of them. That is the very reason why these execu-tive actions the Secretary announced on November 20 are essential because we have a multibillion dollar budget, almost $6 billion, but there are 11.5 million people in the country unlawfully. We have over 2 million in process, at one stage or another of immigration proceedings. There is no way, I would think, that this committee would support funding the removal of each one of those because it would cost billions and billions of dollars. So prosecutorial discre-tion is just essential.

Ms. KELLY. And how frequently would you say a typical ICE agent exercises this discretion on the job?

Ms. SALDANA. Every day it’s a part of their job. And they come across different situations at all times.

Ms. KELLY. Thank you. Mr. Roth, in your written testimony, you said: Given the shear

number of removable aliens and the finite resources available to re-


ING

-643

0 w

ith D

IST

ILLE

R

26

move them, DHS has decided it must focus on those who pose the greatest risk.

As a former prosecutor, you used prosecutorial discretion many times, isn’t that right?

Mr. ROTH. That’s correct. Ms. KELLY. Would you agree that this discretion involves making

judgment calls? Mr. ROTH. Absolutely. Ms. KELLY. And, Mr. Roth, in writing the May 4 report, did your

office conduct a cost-benefit analysis as to how more discretion data would improve enforcement outcomes, and why or why not?

Mr. ROTH. We were not able to simply because we don’t know how often prosecutorial discretion is used. I think, as Director Saldana noted, we know how much is used later on in the process, when ICE lawyers, for example, take people out of the system. The thing that we don’t know—and we think we should know, and the Department agrees that they should know—is how often that dis-cretion is exercised at the very point of encounter, which, as you know, would be the most cost-effective way to do it. But until we actually understand what we’re talking about, it’s impossible to do a cost-benefit.

Ms. KELLY. So DHS responded to a draft of the inspector gen-eral’s report by stating this data project will, ‘‘provide a framework for measuring and evaluating the Department’s enforcement ac-tions from a range of perspectives.’’

Is it fair to say that sometimes the use of this discretion can be difficult to quantify?

Mr. ROTH. The number of times you use the discretion should be able to be quantified. Now, the reasons that you use it or the judg-ment that is used is, obviously, something that will vary depending on sort of what situation the officer has. But the raw numbers themselves, and if I could just use an example, we wrote an audit of the workforce enforcement that ICE does. And there they do col-lect statistics. And one of the things that jumped out at us in that audit was the fact that, for example, New Orleans 5 percent of the time imposed fines, yet Chicago did it 35 percent of the time. That raises the obvious question, how is Chicago different than New Or-leans? It might be perfectly appropriate. But it certainly raises questions that you want to ask. So until you collect that data, though, you’re not even going to be able to understand which ques-tions you should ask.

Ms. KELLY. I’m out of time. Thank you so much. Mr. RUSSELL. The chair now recognizes the gentleman from

Georgia, Mr. Hice, 5 minutes. Mr. HICE. Thank you, Mr. Chairman. Ms. Saldana, do you have any idea how many convicted criminals

have been arrested by ICE this year? Ms. SALDANA. I believe that number is, let’s say for 2014, it’s

177,960. About 56 percent of those that were removed from the country. Are you asking for 2015 thus far, sir?

Mr. HICE. Yes, ma’am. Ms. SALDANA. I don’t have that readily available but I’m happy

to provide it.


ING

-643

0 w

ith D

IST

ILLE

R

27

Mr. HICE. I would appreciate that. Would you have any idea how many have been released this year?

Ms. SALDANA. This year we have I think somewhere in the neigh-borhood of—actually, I don’t have that number, sir.

Mr. HICE. I’m assuming, then, you don’t have any projections this year from previous years?

Ms. SALDANA. For? Mr. HICE. For how many are going to be arrested, how many are

going to be released. Ms. SALDANA. No. Projections? Mr. HICE. Yes. Ms. SALDANA. No, we don’t. Mr. HICE. Okay. Well, based on the last couple of years, there’s

been over 50,00 released. So it would be my assumption, then, we will continue down that trend. Last time that we had, that you ap-peared here, I had spoken to the sheriff of Gwinnett County, Geor-gia, which is one of the top five counties in the country dealing with the problem of illegals being released in their county. I was told by the sheriff before coming in here that his department has had no communication whatsoever with Homeland Security or ICE before criminals have been released back into his county. We spoke about that, and you assured me that you would start informing local law enforcement agents when criminal aliens are released back into their communities. Is that system—and, in fairness, you said you didn’t know when that would occur. My question is, is that system in place now?

Ms. SALDANA. Well, I think what I said was: It is not systematic. We have relationships all over the country where people pick up the phone and call each other.

What I want is a systematic process. That’s what I’m always in-terested in, in establishing systems and procedures that will assure that. That’s what that Law Enforcement Notification System is about that I mentioned in my opening statement, LENS, which we have tested already in Texas, Louisiana, and one other State, Vir-ginia, I think, those three States. And we plan to have all the States connected to a systematic notification system by the end of the year.

Mr. HICE. Well, your comment to me was that your Department, your agency would be informing local law enforcement agents and departments when you release criminals back into their commu-nities. And that is not in place still?

Ms. SALDANA. That has begun, sir, in three States, Texas in-cluded, where we have a substantial amount of activity. It is——

Mr. HICE. When is it going to be completed, I want to know next time I call one of my sheriffs, that they will be able to say to me that you contacted them, your Department contacted them when thieves, murderers, rapists, whatever, have been released back into their communities.

Ms. SALDANA. As I said earlier, by year end, we should have the entire country covered. And your department will get a phone call this afternoon.

Mr. HICE. Okay. So you are saying to this committee that by the end of the year, every local law enforcement agent throughout the


ING

-643

0 w

ith D

IST

ILLE

R

28

country will be notified before an illegal is released back into their community?

Ms. SALDANA. The way I described it, sir, it is a notification sys-tem that goes through the State. You know, we can’t, I don’t know, we have 254 counties in Texas, which is a large number. What we ask them to do is to connect up with the State notification system. We give the information to the State. And the State has already in place——

Mr. HICE. So local law enforcement will not be notified, the State will. So it will be left to the State to communicate it abroad?

Ms. SALDANA. Yes. And we’re discussing it with the Governors of those States. And people who implement the system, they’re more than happy to do this.

Mr. HICE. Does ICE or any other agency in our government mon-itor the activities of criminals following their release?

Ms. SALDANA. Many of them are released with conditions, includ-ing supervision, reporting in, ankle bracelets, other conditions that are imposed in making the decision to release somebody under those conditions.

Mr. HICE. This is an issue that I think people are sick and tired, Americans cannot fathom, cannot understand why illegal individ-uals in this country who are repeat offenders of crime are contin-ually released back in their communities. They shouldn’t be in the country the first place, let alone walking freely in our communities to the tunes of tens and tens and tens of thousands.

And, Mr. Chairman, I just express my great concern with this. And I yield my time.

Mr. RUSSELL. The gentleman yields back. The chair now recognizes the gentlelady from New Mexico, Ms.

Lujan Grisham, for 5 minutes. Ms. LUJAN GRISHAM. Thank you, Mr. Chairman. I’m going to talk about a couple of folks in my district. One

young woman, Yuridia Loera was brought to this country when she was 2 years old. She currently attends the University of New Mex-ico, my alma matter. Because of DACA, frankly, she was able to travel to Nicaragua and volunteer at a nonprofit for underprivi-leged children. Now, Yuridia wants to attend medical school and provide health care to underserved rural communities. And given that that reflects the entire State and we are in dire straits cur-rently about making sure that we can meet just primary care ac-cess issues pre-ACA, during ACA, and the growing number of mi-nority individuals in a minority-majority State, this is a wonderful thing in a State like mine and I can tell you in the Southwest in general.

Another woman, Marian Mendez Setta is a senior at UNM and she’s studying psychology and philosophy with a concentration in pre-law. And maybe she’ll go to my law school also at the Univer-sity of New Mexico. She comes from a low-income family. And be-cause of DACA, she’s able to work to not only pay for her school, but she helps her parents out financially as well. I do the very same for my mother, very strong cultural values in my Hispanic community.

Now, Chairman Chaffetz, I think, did an interesting thing in this committee, and we’re looking all around us at these beautiful walls


ING

-643

0 w

ith D

IST

ILLE

R

29

with images of hard-working individuals who are dedicated to their work and their families and their communities. Considering that Congress failed to act on comprehensive immigration reform to en-sure that everyone has the opportunity to work, learn, and con-tribute to the country, I support, frankly, the President’s actions on immigration.

However, I have heard several concerns about inconsistencies in how the President’s actions are being applied. Immigration advo-cacy groups have been tracking reports concerning violations of the priorities memo. And after receiving hundreds of phone calls, they are hearing that ICE field offices may not be applying the priorities appropriately. Furthermore, on April 15, over 100 organizations wrote to DHS, Secretary Johnson, expressing similar concern. That letter states, ‘‘we have received numerous reports indicating that several ICE offices are failing to comply with the priorities memo.’’ Even people who do not fall under any priority whatsoever have been removed. Mr. Chairman, I would like to enter this letter into the record.

Mr. RUSSELL. Without objection. Ms. LUJAN GRISHAM. Thank you. On top of this, we have most recently heard concerning reports

that ICE may be mining DMV databases to target low or non-en-forcement priority individuals, issues that I heard about well before I was elected in 2012, not particularly related to this priorities memo but consistent in patterns and practice that I find not only very concerning but offensive.

Even as we speak, immigration advocates are fasting in protest at ICE headquarters just down the street over ICE’s failure to apply prosecutorial discretion in line with the memo.

Director Saldana, these mounting reports are extremely upset-ting. Can you explain to me the inconsistencies in how the prior-ities, frankly, are being applied on the ground?

Ms. SALDANA. Yes, of course. As a matter, again, we’re talking about priorities and the fact

that decisions on even arresting, removal, bond are all made on the basis of these priorities and the judgment of the person of all——

Ms. LUJAN GRISHAM. Are you arguing that there are no incon-sistencies? Because so far, your statement to me is it’s being ap-plied consistently, correctly, and adequately. I just want to make sure I’m following you.

Ms. SALDANA. No. No. No. I’m sorry, I didn’t mean to say that if I did. What I’m saying is every case is different, Congresswoman. Every case is different. We have specifically trained all our folks on the legal side and on the officer side to look at all the facts and circumstances of that matter. So——

Ms. LUJAN GRISHAM. I want to reclaim part of my time. Does that mean that you don’t think that—do you agree that you’re ap-plying the priorities memo effectively? Because I don’t think that you are. And what I really want to know is what you can do to as-sure me and this committee of your full compliance.

Ms. SALDANA. As an example, the perception is not the reality. Ninety-six percent of the people we currently detain in our facili-ties meet priorities 1 and 2.


ING

-643

0 w

ith D

IST

ILLE

R

30

Ms. LUJAN GRISHAM. I’d have to say that I don’t believe that that’s accurate in my community. And I will demonstrate that in a much more direct way.

And I would like, Mr. Chairman, for that to also be included as part of the record.

Mr. RUSSELL. Without objection. Mr. RUSSELL. And the gentlelady’s time is now expired. Votes

have just been called. However. I do believe that we will have time to get through the

next two members’ questions. And, with that, the chair will now recognize the gentleman from

North Carolina, Mr. Walker. Mr. WALKER. Thank you, Mr. Chairman. Obviously, today, we are talking about a very emotional issue,

this goes beyond policy and really has to deal with human life. I’m very grateful for Mr. Roth, Mr. Rodriguez, and Ms. Saldana

for coming in today. But I do believe that we have got to look at very closely as far as some of the problems we are seeing.

The gentlewoman from New Mexico just talked a young lady from DACA and how it was working out for her. Let me tell you another example of someone from the—that was released even after a drug charge, a gentleman by the name of Emmanuel Her-nandez, in my home State of North Carolina, murdered four people. This was after he was a known gang member and after he was picked up with a drug offense. He applied for DACA, and his depor-tation was halted.

Ms. Saldana, earlier you brought in a book and laid it there on the desk. The book basically is the Immigration National Act. And I don’t know if you’re familiar with section 236–C, which is basi-cally the detention of criminal aliens. Are you familiar with that section, Ms. Saldana?

Ms. SALDANA. Yes. Mr. WALKER. Let’s take a look at that. And I’ll read what it says.

It says: The Attorney General shall take into custody any alien who is, A, is inadmissible by reason of having committed any of-fense covered in section 212 and is deportable by reason of having committed any offense covered in section 237. There’s four offenses under that: Aggravated felony, controlled substance, firearm pos-session, and espionage. That’s custody.

Now let me jump to the section that is No. 2, that’s release. It says: The Attorney General may release, okay, only—‘‘only,’’ very key word—only if the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.

Now, what is confusing to many of our American citizens is why the lack of consistency here. So my question for you today is, can you guarantee, is it safe that the most serious, noncitizen illegals and aliens who have been recently ordered to be deported, will they be removed under the President’s executive actions?

Ms. SALDANA. They will, sir. But with respect to those that are under an immigration court, I can’t predict what the immigration court will do. And, of course, that’s a large portion of the people that come through our proceedings. They end up claiming some ex-


ING

-643

0 w

ith D

IST

ILLE

R

31

emption or seeking asylum or something. Their considerations are with USCIS and with the immigration courts.

Mr. WALKER. But according to the Immigration National Act that you brought in and the paragraph that I just read under release, that contradicts what the Attorney General says as far as grounds to be released. Do you see the contradiction in that?

Ms. SALDANA. We’re talking about the mandatory release—man-datory custody provisions?

Mr. WALKER. Yes. Ms. SALDANA. We abide by those. Mr. WALKER. Then please tell me why there is a growing num-

ber, millions of noncitizens continue to remain in this country ille-gally, of which some, obviously, are criminals, how does the Depart-ment expect to address this increased danger to our citizens? Tell me what is being done proactively to follow basically the letter of the law by the Attorney General.

Ms. SALDANA. Let me mention the, again, the, my guidance to the field on March 13. I’ve actually visited with all the field office directors—there’s 26 of them, I believe—across the country and have advised them how it is we’re going to go about our business and with respect to the considerations for any individual being flight risk and safety, public safety. It’s just like any bond decisions that a court would make. And we have trained them accordingly as well.

And then I want to point out the fact that I’ve established this system back in March which specifically sets an extra enhancement of supervisory approval over any release of a convicted criminal that is being considered by a supervisor with a signoff, by a pool of experts that I have at headquarters who come in and review all of these releases. I’m talking about March of 2015. The data that has been quoted has been information relating to fiscal years 2008 through 2014. I can’t speak for what happened then. But I do know that we take this very seriously at the agency. And that’s why I instituted that additional supervisory review of release of crimi-nals.

Mr. WALKER. Final question before I run out of time here, what is the recidivism rate for all aliens who were previously appre-hended, subsequently released, and who have committed a new crime? Do you have that number?

Ms. SALDANA. I don’t have it with me, but it’s very low, I mean, compared to certainly the recidivism rate in the general——

Mr. WALKER. Would you like to take, is there a round number that you would like to suggest what it is?

Ms. SALDANA. I can’t. I won’t speculate, sir. I can provide that number.

Mr. WALKER. Thank you, Mr. Chairman. I yield back. Mr. RUSSELL. Gentleman or, I’m sorry, the chair now recognizes

the gentlelady from D.C., Ms. Norton. And I would ask for brevity so that we can accommodate the last two members here.

Ms. NORTON. I will remember that, Mr. Chairman. There’s concern in the District of Columbia because the D.C.

Council passed a law, it allows driver’s licenses. There have been some reports in the papers about ICE’s use of DMV data to initiate


ING

-643

0 w

ith D

IST

ILLE

R

32

removal proceedings against immigrants. I would have some con-cerns. And I’m wondering if you can tell me whether DMV data-bases are being used for removal purposes.

Ms. SALDANA. Not for removal purposes, ma’am. I will tell you, since I’ve been in this position, since January, I’ve had to run down more allegations and reports in the media that end up yielding a case quite contrary to that which was reported.

Ms. NORTON. You do have access, though, to these databases? Ms. SALDANA. We can check in with the Departments of Public

Safety of the different communities, may be required as part of an investigation, for example. But not for removal purposes.

Ms. NORTON. So you have to be granted them by the jurisdiction? Ms. SALDANA. I’m pretty sure that it’s the department of public

safety itself whatever jurisdiction we’re in that maintains that. And we would communicate with them to see if we could get that infor-mation.

Ms. NORTON. And if they wanted to refuse them, they could? Ms. SALDANA. Yes. Ms. NORTON. That’s very important to clarify. Mr. Chairman, I have here and would like to ask be entered into

the record the briefs filed in Texas v. The United States. There are 15 States plus the District of Columbia that have filed briefs in this case that say that there would be improvement in their own econo-mies. And I ask that these briefs be entered into the record.

Mr. RUSSELL. Without objection. Ms. NORTON. Thank you, Mr. Chairman. I yield back. Mr. RUSSELL. The gentlelady yields back. The chair now recognizes the gentleman from Georgia, Mr. Car-

ter, for 5 minutes. Mr. CARTER. Thank you, Mr. Chairman. Ms. Saldana, Mr. Walker asked you earlier about the recidivism

rate for aliens who were previously apprehended, subsequently re-leased, and who have committed a new crime. You said you do not have those numbers available?

Ms. SALDANA. We have looked at them because we had this ques-tion previously. And I just remember that it was comparative to the regular criminal——

Mr. CARTER. All right. Can you provide this committee with those numbers please?

Ms. SALDANA. Yes. Absolutely. Mr. CARTER. Okay. Mr. Chairman, will you note that those num-

bers will be provided to us? Mr. RUSSELL. So noted. Mr. CARTER. Thank you. Thank you. Mr. Roth, in your report, you found that ICE field officers said

they might not have access to an individual’s criminal history or their country of origin. Is this correct?

Mr. ROTH. The criminal history in their country of origin. For ex-ample, if it’s a Mexican national, they may not be able to have the criminal history that may have occurred within their country of ori-gin.

Mr. CARTER. So what happens when an ICE field agent doesn’t have this history?


ING

-643

0 w

ith D

IST

ILLE

R

33

Mr. ROTH. Well, they’re not able to evaluate it in the use of their discretion.

Mr. CARTER. Do other ICE officials have this, that information? Mr. ROTH. This is a vulnerability that we found during the

course of our fieldwork that we notified ICE of. But my under-standing is largely the answer is no.

Mr. CARTER. Why would the field officers not have that informa-tion but some of the other officers may have it?

Mr. ROTH. Well, I’m not 100 percent sure as to which countries and what parts of ICE may have access to that information.

Mr. CARTER. Ms. Saldana, why would some of the ICE field offi-cers not have access to some of this information?

Ms. SALDANA. Well, it needs to be provided by the country—by the country in question. And some countries are more cooperative with the United States than others.

Mr. CARTER. So we just depend on them to give it to us? We don’t demand that they give it to us?

Ms. SALDANA. Oh, we can demand. But there’s not much we can do. I’m working with the Department of State to try to help with respect to countries that have been recalcitrant in their cooperation with us to urge them to assist us. I even went to China a couple of months ago to sign a repatriation agreement, which is a very no-table event, where they agreed to come to the United States, send two people to the United States to actually assist with repatriation. So we’re making inroads. But, diplomatically, it’s a huge world.

Mr. CARTER. I understand. But how can we expect the ICE field agents to apply prosecutorial discretion without access to those records? That’s a lot to expect out of them, don’t you think?

Ms. SALDANA. Yes, it is, sir. Again, as I said earlier, every deci-sion we make on custody bonds, decisions to remove or put some-one in immigration proceedings is made on the basis of the infor-mation we have available. That’s——

Mr. CARTER. What if the information is not available? What do we do then?

Ms. SALDANA. With respect to other countries, we can try MLAT, our procedure through countries asking for information regarding a person’s criminal history. We can try gentle persuasion. But when push comes to shove, you all have provided, the Congress has provided for certain punitive measures to be taken against recal-citrant countries. But that’s something the Department of State is involved in.

Mr. CARTER. Do we, so we ask the illegal aliens, we ask their country for their criminal records?

Ms. SALDANA. Yes. Mr. CARTER. But we don’t always get it? Ms. SALDANA. Right. Mr. CARTER. And if we don’t get it, then we’re just—we can’t—

we can’t use discretion. I mean, I really—you know, we want to do everything we can to give our field agents the opportunity to per-form their work and to do their duty. Yet, if we can’t get the infor-mation, I don’t know how we’re going to do that. Would you agree? I mean, that’s a real problem.

Ms. SALDANA. It is a real problem. And we certainly appreciate any help this committee can provide.


ING

-643

0 w

ith D

IST

ILLE

R

34

Mr. CARTER. What can we do? Tell us what we can do to help you.

Ms. SALDANA. Well, I mean, I think there are statutes on the book that provide for working with our countries. And when they don’t cooperate, perhaps going further with respect to some puni-tive measures. But that’s not something ICE does. That’s some-thing the Department of State is charged with, the laws that you all, the Congress, has passed with respect to that.

Mr. CARTER. Okay. Mr. Chairman, that’s all I have today. Thank you. I yield back. Mr. RUSSELL. The gentleman yields back. I would like to thank

our witnesses for taking the time to appear before us today. Seeing no further business, without objection, the subcommittees

stand adjourned. [Whereupon, at 3:50 p.m., the subcommittees were adjourned.]


ING

-643

0 w

ith D

IST

ILLE

R

(35)

APPENDIX

MATERIAL SUBMITTED FOR THE HEARING RECORD


ING

-643

0 w

ith D

IST

ILLE

R

36

VerDate Sep 11 2014 15:20 Oct 28, 2015 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 F:\96954.TXT APRIL Inse

rt o

ffset

folio

1 h

ere

9695

4.00

1

AK

ING

-643

0 w

ith D

IST

ILLE

R

37


rt o

ffset

folio

2 h

ere

9695

4.00

2

AK

ING

-643

0 w

ith D

IST

ILLE

R

38


rt o

ffset

folio

3 h

ere

9695

4.00

3

AK

ING

-643

0 w

ith D

IST

ILLE

R

39


rt o

ffset

folio

4 h

ere

9695

4.00

4

AK

ING

-643

0 w

ith D

IST

ILLE

R

40


rt o

ffset

folio

5 h

ere

9695

4.00

5

AK

ING

-643

0 w

ith D

IST

ILLE

R

41


rt o

ffset

folio

6 h

ere

9695

4.00

6

AK

ING

-643

0 w

ith D

IST

ILLE

R

42


rt o

ffset

folio

7 h

ere

9695

4.00

7

AK

ING

-643

0 w

ith D

IST

ILLE

R

43


rt o

ffset

folio

8 h

ere

9695

4.00

8

AK

ING

-643

0 w

ith D

IST

ILLE

R

44


rt o

ffset

folio

9 h

ere

9695

4.00

9

AK

ING

-643

0 w

ith D

IST

ILLE

R

45


rt o

ffset

folio

10

here

969

54.0

10

AK

ING

-643

0 w

ith D

IST

ILLE

R

46


rt o

ffset

folio

11

here

969

54.0

11

AK

ING

-643

0 w

ith D

IST

ILLE

R

47


rt o

ffset

folio

12

here

969

54.0

12

AK

ING

-643

0 w

ith D

IST

ILLE

R

48


rt o

ffset

folio

13

here

969

54.0

13

AK

ING

-643

0 w

ith D

IST

ILLE

R

49


rt o

ffset

folio

14

here

969

54.0

14

AK

ING

-643

0 w

ith D

IST

ILLE

R

50


rt o

ffset

folio

15

here

969

54.0

15

AK

ING

-643

0 w

ith D

IST

ILLE

R

51


rt o

ffset

folio

16

here

969

54.0

16

AK

ING

-643

0 w

ith D

IST

ILLE

R

52


rt o

ffset

folio

17

here

969

54.0

17

AK

ING

-643

0 w

ith D

IST

ILLE

R

53


rt o

ffset

folio

18

here

969

54.0

18

AK

ING

-643

0 w

ith D

IST

ILLE

R

54


rt o

ffset

folio

19

here

969

54.0

19

AK

ING

-643

0 w

ith D

IST

ILLE

R

55


rt o

ffset

folio

20

here

969

54.0

20

AK

ING

-643

0 w

ith D

IST

ILLE

R

56


rt o

ffset

folio

21

here

969

54.0

21

AK

ING

-643

0 w

ith D

IST

ILLE

R

57


rt o

ffset

folio

22

here

969

54.0

22

AK

ING

-643

0 w

ith D

IST

ILLE

R

58


rt o

ffset

folio

23

here

969

54.0

23

AK

ING

-643

0 w

ith D

IST

ILLE

R

59


rt o

ffset

folio

24

here

969

54.0

24

AK

ING

-643

0 w

ith D

IST

ILLE

R

60


rt o

ffset

folio

25

here

969

54.0

25

AK

ING

-643

0 w

ith D

IST

ILLE

R

61


rt o

ffset

folio

26

here

969

54.0

26

AK

ING

-643

0 w

ith D

IST

ILLE

R

62


rt o

ffset

folio

27

here

969

54.0

27

AK

ING

-643

0 w

ith D

IST

ILLE

R

63


rt o

ffset

folio

28

here

969

54.0

28

AK

ING

-643

0 w

ith D

IST

ILLE

R

64


rt o

ffset

folio

29

here

969

54.0

29

AK

ING

-643

0 w

ith D

IST

ILLE

R

65


rt o

ffset

folio

30

here

969

54.0

30

AK

ING

-643

0 w

ith D

IST

ILLE

R

66


rt o

ffset

folio

31

here

969

54.0

31

AK

ING

-643

0 w

ith D

IST

ILLE

R

67


rt o

ffset

folio

32

here

969

54.0

32

AK

ING

-643

0 w

ith D

IST

ILLE

R

68


rt o

ffset

folio

33

here

969

54.0

33

AK

ING

-643

0 w

ith D

IST

ILLE

R

69


rt o

ffset

folio

34

here

969

54.0

34

AK

ING

-643

0 w

ith D

IST

ILLE

R

70


rt o

ffset

folio

35

here

969

54.0

35

AK

ING

-643

0 w

ith D

IST

ILLE

R

71


rt o

ffset

folio

36

here

969

54.0

36

AK

ING

-643

0 w

ith D

IST

ILLE

R

72

Æ


rt o

ffset

folio

37

here

969

54.0

37

AK

ING

-643

0 w

ith D

IST

ILLE

R